A party is entitled to equitable tolling if a district court has dismissed the initial habeas petition before allowing a party to amend the petition.

Anthony Butler was convicted, by a Los Angeles County jury, of attempted premeditated murder. Butler appealed, but the California Court of Appeal quickly dismissed the review. Shortly thereafter, the statute of limitations began to run pursuant to the Antiterrorism and Effective Death Penalty Act’s one-year statute of limitations. Butler then filed various state habeas petitions, which eventually lead to his first federal petition. Butler was not provided an opportunity to amend his habeas petition to remove any unexhausted claims before the district court denied his claims. Butler then filed additional state habeas claims to the district court. The magistrate judge issued an Order to Show Cause. Butler responded to this order by arguing that he was required to wait until his his state claim was exhausted before he was able to file a federal claim. The magistrate judge then issued a Report and Recommendation which suggested that the district court dismiss the petition “as untimely and dismiss the action with prejudice.” Butler objected to this dismissal stating that he was “an indigent, illiterate, incarcerated prisoner [who sought] assistance from various jail-house lawyers.” The district court adopted the magistrate’s recommendation and dismissed the claim with prejudice. The Ninth Circuit held that before a district court can dismiss a mixed petition, the petitioner must have the option to amend the petition. The panel determined, since the district court erred when it did not allow the petitioner to amend his initial petition, he is entitled to equitable tolling. REVERSED and REMANDED.